ON REHEARING. We think we have sufficiently stated, in the original opinion, the theory of each of the two paragraphs of complaint, but, that we may have clearly before us the thing that happened at the time of the accident complained of, as averred in each of these paragraphs, we set out these averments as follows: It is averred in the first paragraph of complaint that "The United States mail agent upon defendant's train threw the mail pouch off of said train into or east of said receiving pen near the east end thereof, and the said mail sack struck the ground and boundedinto said highway and fell upon the plaintiff." (Our italics.)
It is averred in the second paragraph of complaint that "said mail clerk or agent of the United States government aforesaid, on the 8th day of January, 1926, as said train ran through said town and passed said mail pen, ejected said mail sack or pouch from said train as was his custom and practice as aforesaid, while said train was running at said high rate of speed, to-wit: 60 to 70 miles per hour, and at its usual rate for many years while passing through said point, and the same either lit in the eastend of said pen or east of said pen, and by reason of the momentum acquired by the speed of said train bounced or boundedinto said highway as the plaintiff was driving his wagon and horses upon said highway from the north to the south, and struck plaintiff and injured him to his great damage." (Our italics.) *Page 26
It is to be kept in mind that by the averments of the first paragraph of complaint, appellee's negligence consisted of the improper construction of the pen, the improper location of the same and in permitting the mail clerks to pursue a custom of attempting to throw their sacks from the train into the pen under such conditions; and that by the averments of the second paragraph of complaint, the negligence of appellee consisted, under the same conditions, in negligently running its train at an excessive rate of speed, and in permitting, and acquiescing in, the dangerous custom of the mail clerks in attempting to throw their mail sacks into the pen. It follows then that if, on the occasion complained of, it did not appear by the evidence that the mail sacks were thrown into the pen or on the ground near the east end of it and that they bounded or bounced therefrom into Franklin Street, the negligence with which appellee is charged in the complaint and each paragraph thereof did not result in the accident which produced appellant's injury.
We make the following statement of the evidence directly from the record: Arthur Smith, a witness called on behalf of appellant, stating his evidence in narrative form, testified so far as here involved, that he is a painter, forty years old, and lived at the time appellant was hurt, January 8, 1926, on Grant Street right close to Franklin Street, east of Franklin on the north side of Grant. At the time of the accident, he was in the back yard pumping a bucket of water and was about 60 feet from where the overhead crossing crosses Franklin Street, north west of where he was. There were no buildings between his house and the overhead crossing at Franklin Street and no trees. It was snowing just a little, but not very bad, flurries; he could see the overhead, and saw No. 20 pass. It was running 60 or 70 miles an hour, he couldn't tell exactly. It was about *Page 27 3:50 o'clock. The train was running at about the usual speed. Appellant was traveling south in the center of the street, as nearly as the witness could tell, and he saw a mail sack hit appellant's umbrella; it came from the door on the south side of the train. It was west of the arch when it came out of the door. It was thrown out or kicked, he couldn't tell which. It was west of Franklin Street when it was kicked out. On cross-examination the witness testified that on the day of the accident it was snowing a little but that there was very little on the ground; that he saw just one mail sack come down into the street; that it was the one that hit the umbrella and came through the top of it, and that he certainly saw it come out of the car door. The witness further testified that he never saw the mail sacks hit in the pen and bounce out, but that he had seen quite a few of them stick in there, and they did not come out. In the six years that he lived there it missed the pen 15 or 20 times, and when he said 15 or 20 times, he was not talking about the center of the street. Part of them were east of Franklin Street along the track.
Witness Crandall, called by appellant, testified that he was the mail and express man and had handled both the mail and express at Knightstown for thirty years. Franklin Street, from curb to curb, was about 30 feet wide and from property line to property line, about fifty feet, maybe a little more. The mail is delivered into the pen west of Franklin Street. The pen is about 10 or 12 feet wide and about 200 feet long. It was about 90 feet, maybe a little better, from the west property line, and 105 feet from the pen to the center of Franklin Street. He had seen sacks bound 20 or 30 feet at times. At the time of the accident he went after the mail and it was not in the pen. He found it down on the curb. It was snowing and blustering a little, he did not know that you could call it a heavy snow fall though *Page 28 he had made a statement to that effect before. Right at the time the train went through, there was a blustery bunch of snow, one minute you could not see any distance and then you could. He went up to see where the mail was. There were no marks of any pouches or sacks. He did not find any. He did not find any east of the pen. He looked around. He looked in the pen first to see any marks of the sacks and then looked on the embankment east of the pen, up as far as Franklin Street and found no marks at either place. When No. 20 went through it was throwing a swirl of snow on each side of the train.
Witness Rue, one of the mail clerks called by appellee, testified in chief that at that time there was a real heavy snow, but he did not remember at what time it started in. The snow was falling fast. It was pretty cold and the wind was from the north, and when the wind is from the north the steam just whips the snow back and looks like a cloud of smoke. There were landmarks or buildings, or signs by which to go to assist in discharging the mail — first an overhead bridge, and the witness started to the door when they crossed that bridge; and then a grain elevator which he used for a mark for the receiver or mail pen. On this occasion he could not see these landmarks because of the steam and falling snow. He could not see the east end of the mail pen. The steam would rise and one would see through it and then it would drop again. When a train is traveling 60 or 70 miles an hour, the sacks will bound five or ten feet at the most. He thought he could see where he was throwing the mail sacks but it was not clear. It looked to him like it was in the right place. He could not see the east end of the mail pen, but did see the iron fence on the south side, just a moment and threw the sack right away. You have to work pretty quick. He did not throw any mail off of the train on that run after leaving *Page 29 Knightstown because could see nothing for the snow and steam.
Witness Adair, the other mail clerk called as a witness by appellee, testified that the weather on the day that the accident occurred was stormy and that it was snowing and blowing and weather conditions were very bad. The steam from the engine was blowing hard, driving the snow right and left on the sides of the train. He thought the wind was from the north. He threw off the mail pouch, and then made a catch of a pouch hanging on a crane which was east of Franklin Street about 100 feet. He threw the sack off and thought it went into the receiver. He did not see it strike and did not know for sure, but he saw the fence along the side and thought the sack went in the pen. When a train is running 60 or 70 miles an hour, a mail sack will bound or bounce 15 or 20 feet very often. He never knew that he discharged mail into the pen at Knightstown in such a manner as that it missed the pen or went outside of it.
It is to be observed that neither of the mail clerks testified positively that the mail sacks went into the pen, only testifying that they thought that they did so, but they only saw the iron fence on the south side and did not see the east end of the pen. They were unable to see because of the steam which was blown to the south side of the train by a north wind, and the snow. No witness testified that the mail sack bounded out of the pen or from any place near the east end of it into Franklin Street. On the contrary, by the positive evidence of two witnesses, the mail sack went directly into Franklin Street, the one testifying that there were no marks in the snow either in the pen or east of it made by the mail sack, and the other that he saw the mail sack come from the door on the south side of the train and come down into Franklin Street. It is true that he testified that it was west of Franklin Street when it was *Page 30 kicked or thrown out, but it is apparent that it had to be west in order that the momentum which it had from the speed of the train would carry it into Franklin Street and not beyond.
Not only was there this uncontradicted evidence that the mail sack was not thrown into the pen, or near the east end thereof, and from there bounding into Franklin Street, but when we take into consideration actual measurements, locations and conditions along with other uncontradicted evidence we are constrained to say that the mail sack could not have bounded from the pen or near the east end thereof and have struck appellant's umbrella and injured him as contended by him. Witness Smith testified that appellant was driving down the center of Franklin Street. By actual measurement this was 105 feet from the east end of the receiving pen, and 23 3/4 feet from the west property line of Franklin Street, which was one of the abutments upon which the overhead bridge rested. Appellant was upon a high seat upon his dray and his umbrella was yet above him. We reasonably assume that the umbrella must have been at least 8 feet above the street, and from other measurements the abutment could not have been over fifteen feet high. One witness testified that the sacks would, when the train was running 60 to 70 miles per hour, bound five to ten feet at the most, another 15 to 20 feet sometimes, and another, 20 to 30 feet at times. But on this occasion, in order for the mail sack to bound from the pen, or near the east end of it, and injure appellant, it must bound 105 feet from the east end of the pen to the center of Franklin Street, the last 23 3/4 feet of which were over the open street and to the top of appellant's umbrella. Under such conditions as appears by the uncontradicted evidence, we are not weighing the evidence when we say that such a happening was a physical impossibility, and 5. that in order to strike *Page 31 the top of appellant's umbrella and crush it downward, and injure appellant, it had to come directly from the car door. Such being the case, the negligence with which appellee is charged could not have caused appellant's injury.
It is a well established rule of law that a complaint must proceed upon some definite theory, and that the evidence must support that theory or there can be no recovery. Wagner 6. v. Winter (1890), 122 Ind. 57, 22 N.E. 754; Cool v. McDill (1906), 38 Ind. App. 621, 78 N.E. 679.
Petition for rehearing denied.